July 11, 2002 — Even as lawmakers attempt to craft legislation to clamp down on Internet sites featuring preteen and teen “models,” authorities are using laws already on the books to prosecute operators of three such sites who allegedly possessed — and may have been selling — sexually explicit material featuring minors.

All three cases involve operators of “model” sites who crossed the legal line, either by possessing child pornography — a violation of federal law — or photos or videos showing underage girls in various states of undress that ran afoul of state laws against sexual exploitation of children, according to authorities.

The cases appear to provide new ammunition to critics of the “model” sites, which charge members a monthly fee to view photos of under-18 girls — including some as young as 8 or 9 — wearing revealing attire and striking suggestive poses. The majority of the sites do not feature nudity or overtly sexual material, but the cases currently in the courts indicate that some operators are happy to push the envelope.

Two members of Congress — Reps. Mark Foley, R-Fla., and Nick Lampson, D-Texas — have introduced legislation to crack down on the sites, which they say appeal to and are likely to encourage pedophiles.

‘YOUNG CHILDREN ON A PLATTER’

“These Web sites … don’t sell products, they don’t sell services — all they serve are young children on a platter for America’s most depraved,” Foley said in March in announcing the legislation, which an aide said would likely have its first hearing in September.

But some in the fledgling “non-nude” niche are hopeful that the criminal cases will provide clear signals where the legal boundaries lie as they seek a degree of legitimacy for what one operator compared to the “pin-up” calendars of his youth.

A 12-year-old girl wears a swimsuit and fishnet stockings on a preteen "model" site that recently shut down after being featured on a TV newscast.

“The cases could send a wake-up call ... that there has to be a limit of where you can go and a line beyond which you shouldn’t venture,” said Dave Mundy, whose “non-nude” Bayougirls.com site features underage as well as adult models.

But it is likely that any line drawn by the courts will be blurred, given the differing circumstances and venues of the three cases to be decided in the coming months:

The first, scheduled to go to trial on July 22, involves a “mom and pop” site run by an Arkansas couple that featured their 12-year-old daughter.

Sheriff’s deputies officers who served a search warrant on the home of James and Donna Cummings of Magazine, Ark., in October 2001 found a videotape featuring the daughter that a prosecutor described as “significantly more explicit” than the cheesecake-style photos of her that were posted on the site.

The Cummingses, who are free on bail, are charged with the state felony of “engaging children in sexually explicit conduct for use in visual or print medium,” and face a maximum of 10 years in prison and a $10,000 fine. In the meantime, the couple’s four children have temporarily been placed in the custody of a grandparent pending the outcome of the trial.

The indictment alleges that Smith, who operated at least one preteen “model” site and possibly others, “employed and enticed a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct” that was later transported across state and national borders. Published reports have indicated that the charges involve a 12-year-old Missouri girl who allegedly posed for Smith in a hotel room last year.

Smith, who was previously convicted of sexual abuse of a 16-year-old in Arkansas, is being held without bail. He faces up to 90 years in prison without parole and a fine of up to $750,000 if convicted of all three counts against him at his trial, currently scheduled to begin on Sept. 23.

On April 5, Arapahoe County, Colo., deputies raided the home and offices of photographer James Steven Grady, who also operated the TrueTeenBabes and TrueTeenCams Web sites.

Grady, 42, has pleaded innocent to 886 felony counts of violating a state statute against sexual exploitation of children. He remains in jail in lieu of $500,000 bail and could face a maximum sentence of life in prison if convicted at his trial, currently scheduled to begin on Oct. 3.

The case against Smith, who was arrested after NBC’s Chicago affiliate WMAQ reported that the operation of his teen “model” site apparently violated his parole, may be the strongest of the three, since it is based on the frequently used federal child pornography statute.

In a statement announcing Smith’s indictment, U.S. Attorney Todd Graves said that investigators had seized copies the child pornography that Smith allegedly was selling and had obtained guilty pleas from three ancillary figures in the case, who apparently are cooperating with authorities.

Attempts by MSNBC.com to reach Smith’s attorney were unsuccessful.

‘EROTIC NUDITY’ AT ISSUE

The case against Grady will largely rest on a section of a Colorado state law prohibiting sexual exploitation of children that deals with “erotic nudity,” which it defines as the display of genitals, pubic area or the breast area “for the purpose of real or simulated overt sexual gratification or stimulation.”

Prosecutors say that Grady, who has a criminal record that includes theft, fraud and contempt-of-court convictions, mingled his professional glamour photography business with hard-core adult porn and teen “model” sites. The 886 counts filed against him include four violations of the law for each of the 220 photos featuring 13 underage girls that prosecutors say were found in Grady’s offices and on his computers.

Grayson Robinson, the undersheriff of Arapahoe County, who was involved in the April 5 raid on Grady’s businesses, told MSNBC.com that the photos featured both “full nudity … and kind of opaque nudity through sheer clothing.”

Grady’s attorney, Andrew Contiguglia, hinted during a preliminary hearing on May 29 that he will argue that the photos were fashion photos that had artistic merit, telling the court, “I have not heard anything related to sexual purpose.” The artistic merit argument has been used successfully by a number of photographers to defend their images of nude or partly nude children.

But Robinson, the undersheriff, said it isn’t likely to carry much weight given the circumstances in which the photos were taken.

‘CLEARLY EXPLOITIVE’

“Where we are focused is the sexual exploitation of juveniles, and this is clearly exploitive of young girls who are not old enough to sign contracts or make a variety of life’s decisions,” he said.

In the case of the Arkansas couple, the videotape seized during a search of the home and the circumstances in which the search warrant was obtained are expected to be key as prosecutors seek to prove that they violated a state law barring “engaging children in sexually explicit conduct for use in visual or print medium.”

Prosecutor Tom Tatum II told MSNBC.com that the material on the tape was “significantly more explicit” than the images of the daughter on the Web site, though “a couple of the photos (posted there) maybe crossed the line as well.”

A news group posting requesting donations to help pay the Cummingses’ legal expenses, which was sent from the same email account that James Cummings used to register his daughter’s Web site, described the videotape as being 3-years-old — shot when the daughter was 9 — and stated that it did not contain nudity.

The post, which was filed to a news group devoted to sex topics on Nov. 2, 2001, also stated that sheriff’s deputies obtained a search warrant for the Cummings home by falsely claiming that the couple was selling videotapes of their daughter on the Web site.

SEARCH WARRANT QUESTIONED

An attorney for the Cummingses, David Dunagin, declined to discuss the evidence against his clients, but indicated that the circumstances under which the search warrant was obtained could prove an avenue for appeal if they are convicted.

Even before the courts rule, the cases have added fuel to what was an already superheated debate over the preteen and teen “model” sites.

Foley, the Florida congressman, seized on the issue last year after NBC’s Miami affiliate, WTVJ/NBC 6, reported that a company in his home state, Webe Web Inc., had created at least a half dozen sites featuring teen and preteen girls, all of whom apparently had their parents’ permission. After asking the FBI to investigate the sites, the congressman announced in March that he would introduce a bill that would ban sites that “do not promote products or services beyond the child.”

But Jeffrey J. Douglas, chairman of the board of the Free Speech Coalition, an adult-industry trade association, said such an approach is “utterly unconstitutional” as well as unnecessary.

“The problem isn’t the Web sites,” he said. “If there are Web sites that are literally promoting child porn, those laws already exist. If it’s a matter of trying to address people’s poor taste in eroticizing children … I don’t think there’s a federal solution to that problem.”

Foley responded that the bill “will meet constitutional muster.”

“We don’t make laws that we think will be shot down,” he said. “Unlike these website operators, our motives are pure.”

The unwanted attention from law enforcement and legislators has prompted at least a handful of operators to shut down their sites or eliminate all photos of underage “models” until the legal landscape is more certain.

“I’ve actually had guys who were running other (model) sites ... email me and ask me to remove their links because they want to lay low,” said Mundy, the operator of the BayouGirls site.

But while others fade into the background, a handful of operators like Mundy are stepping forward to defend their sites against what they see as political grandstanding.

“I think it’s a huge overreaction,” David Leiber, who runs a teen model site, said of Foley’s proposed legislation. “The thing that makes me sad is that there are a lot of children that are being exploited - kids who are being beaten to death, sexually abused - and those issues are being ignored.”

Leiber added that he is not exploiting the 13-year-old girl featured in “hundreds of photos” and video clips available on the site for those willing to pay $14.95 a month.

“She’s trying to get noticed so she can model for J.C. Penny and things like that,” he said.

But Mariana Dunn, who has engaged in an undercover crusade over the past eight months to document the excesses of individual “model” sites, said her experience indicates that the sites are “as addictive, as haunting, as mesmerizing, and just as ... harmful to the children involved as the hard-core (child pornography sites).”

And she said that she fears the problem will grow exponentially if lawmakers don’t crack down hard.

“Owners scared of the current climate closed their sites and are waiting; some sites continue to operate, waiting also,” said Dunn, who agreed to be interviewed on the condition she not be identified by her real name, which she said would endanger her evidence-gathering efforts. “... I feel failure of Foley’s efforts will open the floodgates.”